This progressive blog sets forth the personal views of the Dean of the Massachusetts School of Law on national events. Occasionally, the responses to his views or other interesting articles are also posted.

Wednesday, August 31, 2005

Re: Appended Writings Of Peter Young And Scott Horton

This blogger recently received two writings of great importance. They are both true stories, and are both appended below.

One is from Peter Young, who was a lawyer for Anthony Russo in the government’s prosecution against Russo and Daniel Ellsberg. It is pertinent to the Roberts nomination. Young gives an amazing, an utterly riveting, description of events at the Ellsberg/Russo trial including -- pertinently to the Roberts situation -- an attempt by the Nixon Administration to in effect bribe and manipulate the judge who was presiding over the government’s prosecution by offering the judge appointment as Director of the FBI. The whole story Young tells is just fantastic to read.

The other piece first appeared in The New York Law Journal. It is by Scott Horton, the prominent New York lawyer who was confidentially consulted about the Administration’s efforts to authorize torture -- efforts they opposed -- by, I believe, the Judge Advocate Generals (or their subordinates) of the Army, Navy, Air Force and Marines. This consultation marked one of the early steps to stop the torture. Horton’s piece tells how George Washington reacted to serious mistreatment of American prisoners by the British and to suggestions that we reply in kind. It also discusses efforts by Senators and military officers to require that today’s Americans act as Washington did -- efforts the Bush Administration has tried to stymie.

1. The Writings of Peter Young

Date: Wednesday, August 31, 2005 3:06 AM

Dear Dean Velvel:

Your piece on federal judges failing to recuse themselves when under consideration for higher appointment and, worse, their attempts to curry favor with the appointing authority bring to mind an episode from the Pentagon Papers trial of Dan Ellsberg and Tony Russo in Los Angeles in 1973. As a young lawyer, I was co-counsel for Russo alongside his chief counsel, Leonard Weinglass.

Older readers will remember that in 1971 the Government sought an injunction prohibiting publication in the New York Times and the Washington Post of the Pentagon Papers, a multi-volume history of U.S. involvement in Viet Nam that had been classified top secret. After the U.S. Supreme Court rejected that effort as a prior restraint on expression invalid under the first amendment, Ellsberg and Russo were indicted on espionage, theft and conspiracy charges as a result of their alleged unauthorized copying and transmission of the Papers. (The indictment was carefully framed to exclude allegations of the transmission of the Papers to the press. The Government did not want the defendants’ underlying motive—revealing the truth about the War in Viet Nam to the American people via the press—to play any part in the case. In reality the case was all about the free flow of information to the people on matters of vital public concern which first amendment jurisprudence regards as central to democratic self-government, and yet in court the first amendment’s free speech and press guarantees were deemed legally irrelevant to the criminal charges since they did not protect acquisition of secret information. All our efforts to raise the first amendment in a case based on conduct evoking the central meaning of the first amendment were cursorily rejected. The law, even constitutional law, works in mysterious ways.)

Towards the end of the ensuing trial, a Washington Post story revealed that while the case was underway the federal district court judge presiding over it, William M. Byrne, Jr., met with John Ehrlichman, chief White House advisor for domestic affairs, and President Richard Nixon, and that they told him he was under consideration for appointment as FBI director. (The FBI’s first director, J. Edgar Hoover, had died in May, 1972, and the nomination of acting director L. Patrick Gray III as his successor had been scuttled when it was revealed he had burned records related to the Watergate crimes in his fireplace. Ehrlichman advised Nixon to make Gray the patsy for Watergate and to leave him "twisting slowly, slowly in the wind.")

Charles Nesson, the Harvard Law School professor who demonstrated he was also a very capable trial attorney as one of Ellsberg’s lawyers, got word of the Post story early on the morning of its publication and notified Judge Byrne’s chambers that we would be raising the matter in court that day. He had done so without giving it a second thought; it was instinctive for Charlie to do the decent thing. A few harsh words, mumbled, not yelled, passed between the Ellsberg and Russo legal teams, a rarity in the case since we presented a joint defense and ordinarily got along extremely well. We on the Russo side agreed that Charlie had done the gentlemanly thing, but we were convinced we were not dealing with gentlemen and thought tipping off Judge Byrne would allow him time to prepare a response and help him blunt the force of our argument that the White House approach to the judge had tainted the case. Furthermore, the opportunity to prepare a statement would allow the judge to shape the way the story was reported. Actually, I think we were more miffed that we had not been consulted before the decision to notify Judge Byrne was taken. Protocol apparently must have its place, even within the ranks of criminal defense lawyers and even when time is short. The hard feelings lasted only a couple of hours, and almost a third of a century later, I rather think Charlie was right to make the call. Judge Byrne probably would have learned of the Post story from another source before we appeared in court, and it is doubtful we could have gained anything more had we been able to spring the news on the judge. Because of Charlie’s call, history will show that the defense (at least part of it) acted with civility when others did not (although that is not to say civility is always the best course).

Sure enough, when we got to court at the appointed hour, the usually punctual Judge Byrne was nowhere to be seen. We—and a larger than normal press corps, which had been alerted—were kept waiting more than an hour before he appeared. I sat closest to the judge; his face was ashen as he read a prepared statement. He said he had been invited to meet the President to discuss a matter not related to any cases pending before him, that he was told he was under consideration for the FBI directorship and that he had been asked whether he was interested in the post. No commitments were made, he declared, and the matter was left in abeyance until conclusion of the trial.

After reading his statement, Judge Byrne made it plain he regarded the matter as closed. Over the following weeks, he rebuffed the defense’s repeated requests for an evidentiary hearing on the issue, particularly on whether the Government had sought to bribe him. Leonard Boudin, another of Ellsberg’s lawyers and a wonderful advocate, renewed the request for an evidentiary inquiry almost daily. He must have been a continual irritation to Judge Byrne, who obviously wanted nothing more than to put the matter to rest without further ado.

Eventually it emerged that the judge had at least two secret meetings with Ehrlichman. The first meeting occurred in a public park overlooking the ocean in Santa Monica. The second took place at "the western White House" in San Clemente, where Ehrlichman introduced him to Nixon.

Shortly before the Post’s story on the White House approach to Judge Byrne appeared, the Government had begun making a series of in camera submissions to him of materials from the Justice Department’s Watergate investigation. The judge disclosed these materials to the defense, which then revealed them to the press. The information came in snippets—a portion of someone’s grand jury testimony one day, an excerpt of someone else’s FBI interview the next and so on. The trickle of information became a steady stream, and reporters began calling the trial "Watergate West." The courtroom was so packed that spectators sat on top of file cabinets and perched on ledges to hear the latest disclosures. It developed that the White House had put together its own investigative team consisting of various Watergate figures—Howard Hunt, Gordon Liddy, the White House Plumbers and the Cuban operatives of Bay of Pigs infamy—who committed several illegal acts, including the burglary of Ellsberg’s psychiatrist’s office. During the course of these disclosures, Nixon reluctantly requested and got Ehrlichman’s resignation. It turned out later that Ehrlichman signed off on the Ellsberg psychiatrist burglary, albeit on the condition of assurances that it would not be traceable, and Nixon almost certainly knew of it in advance. The White House even sat by while an innocent man—an African-American, of course, and no doubt one of "the usual suspects"--was convicted of the burglary. He confessed to the crime while under police interrogation, and the prosecutor accepted his guilty plea as part of a plea bargain. Chalk up another crime as solved! The Nixon White House law and order gang must have enjoyed a good laugh over that one.

Shortly after Judge Byrne disclosed the first Watergate-related in camera submissions, the defense filed a motion to dismiss the case for governmental misconduct. That motion was regularly amended as new disclosures were made, and it eventually included the White House approach to Judge Byrne and the psychiatrist's office burglary as well as more mundane irregularities like missing wiretap records and discovery violations. Repeatedly we asked for an evidentiary inquiry into these matters, but to no avail. We wanted the whole White House gang, including Nixon, hauled into court so we could question them ourselves. We protested that we should not have to defend at one and the same time against governmental attacks on the defendants made both within and without the courtroom, that the governmental misconduct impaired our ability to defend against the charges, that the court should resolve the issues that misconduct raised before the trial proceeded further, and that we should not be limited to second-hand investigative reports compiled by Government attorneys in pursuing our motion to dismiss. We even conducted a partial boycott of the case to protest the refusal to accord us an evidentiary hearing. For the last part of the Government’s rebuttal case, while the jury was present, we sat, arms crossed, behind a defense counsel table that was stripped bare—no pens, papers or books of any kind—and remained mute, making no objections during direct testimony of the rebuttal witnesses and declining the opportunity to cross-examine them. Some thought the protest immature; we thought it was an appropriate response to what the White House had done and what the court was doing and that it was a good way to bring public pressure to bear on the matter. (By that point, we were fairly confident we had won the case, and we did not regard the rebuttal witnesses as damaging.)

Just before we were to discuss jury instructions with the judge and as we were preparing to go to the United States Court of Appeals on a petition for writ of mandamus seeking to force an evidentiary hearing and ruling on our governmental misconduct dismissal motion, Judge Byrne announced he was prepared to rule on that motion to dismiss. Since he had refused to conduct an evidentiary hearing, his ruling would be made on the basis of what was already before him, mostly the Government's in camera submissions. He gave us the option of going to the jury for the verdict before he made his ruling. We were given a few minutes to decide. The lawyers smelled an imminent victory and wanted the ruling right away, Ellsberg was ambivalent, perhaps sensing that a dismissal on legal grounds would not constitute complete vindication, and Russo wanted to wait for the jury decision. In these pressure cooker circumstances, the lawyers prevailed—it is doubtful they should have—and the judge promptly read a prepared ruling dismissing all charges on the basis of egregious governmental misconduct violating the fifth amendment’s due process of law guarantee. Noticeably absent from his list of governmental actions constituting misconduct was the approach the White House had made to him. The case was over.

The Pentagon Papers trial remains one of very few in which criminal charges have been dismissed for governmental misconduct violating the substantive due process guarantee of fundamental fairness. But the dismissal precluded any hope of judicial investigation into the White House approach to Judge Byrne. The U.S. Senate’s Watergate later investigation touched on it, but it was not a primary concern there. Thus this extraordinary ex parte approach to a judge sitting in a highly publicized, politically sensitive case raised questions which remain unanswered.

1. Did the approach to Judge Byrne represent a White House effort to influence his rulings on disclosure to the defense of the submissions which the Government was about to make in camera to him as trial judge and which were highly embarrassing, to say the least, to the White House? Nixon White House officials apparently could not control Justice Department lawyers who made the in camera submissions to Judge Byrne, but they may have hoped Judge Byrne could be influenced to rule them irrelevant to the charges in the case and thus to refuse to disclose them to the defense. They may have hoped that he would refuse to disclose the in camera submissions either because he feared losing the prospective appointment as FBI director or because he feared the White House would retaliate by disclosing his secret meetings with Ehrlichman and Nixon. As far as we know, Judge Byrne disclosed to the defense all the Watergate-related materials which were submitted to him in camera over a period of several weeks. In fact, it appears he treated them like political hot potatoes and passed them on to the defense at his first opportunity. Yet I’ve always wondered what the judge would have done had the report of his meetings with Ehrlichman and Nixon arrived in the case by way of one of the Government’s in camera submissions rather than in a published Washington Post story.

2. Was the leak to the Washington Post that produced the story on the White House approach to Judge Byrne revenge for his rulings releasing the in camera submissions to the defense and thus to the public? Was it an effort to divert attention from the White House’s misconduct to Judge Byrne’s conduct? Was it a deliberate effort to bring a premature end to the Pentagon Papers trial on the ground that the appearance of justice had been impaired, thereby shutting down the conduit the trial had become, as "Watergate West," for Watergate-related disclosures? Or was it all of these?

3. Did the White House approach influence Judge Byrne's rulings in any other way? The Government relied on the top secret security classification of the Papers to establish the unauthorized transmission and copying element of the espionage offense. Before the trial began, the judge had ruled that the defense would be allowed to challenge the "classifiability" of the Pentagon Papers to defeat this element of the espionage charges. Roughly speaking, that meant we would be allowed to show that the Papers were not even arguably subject to proper classification or that significant classification procedures were not followed, but that we would not be permitted to show merely that the Papers were incorrectly classified. The defense proceeded on the basis of that ruling throughout the case--until we put on the stand our expert on classification. Inexplicably, the judge sustained Government objections to the classifiability questions and indicated he had never made a binding ruling allowing such questions. Later, after the revelation of the White House approach to the judge, the thought crossed our minds that it simply would not do for a future FBI director to have made a judicial ruling allowing criminal defendants to attack the classification system.

(This surprising turn of events was particularly painful for me since I had, at the last minute, been assigned the job of examining our classification expert after Leonard Boudin threw up his hands in exasperation with this rather stubborn and pedantic witness, and the judge’s change of ruling left me with nothing to examine him about. Largely because we had a considerable investment in this expert—putting him up in Los Angeles and paying him a stipend for several months—we decided, over a weekend recess, not to waste the money and to convert him into an expert witness on the national defense component of the espionage charges. Predictably, this was a mistake, and one we did not need to risk since we had many capable national defense expert witnesses. A couple of the answers this witness gave on prosecution cross-examination were absurd. Even the expert’s wife, in coming to his defense, was reduced to: "Ask a silly question, get a silly answer." To this day, I have never been so relieved to see a witness get off the stand.)

That the White House’s approach to Judge Byrne inevitably prompted questions about its influence on his rulings demonstrated that it irretrievably besmirched the appearance of justice. The rules surrounding judicial disclosure of potential conflicts of interest, ex parte judicial contacts and judicial recusal are, of course, intended to secure the appearance of justice as much as its substance. Judge Byrne surely knew that, and yet he was adamant that his own disclaimer was alone sufficient to put an end to any and all questions of impropriety.

Judge Byrne should have refused to meet with White House officials during the trial. Having met with them, he should have disclosed the meetings. He did neither. Judge Byrne has had a long and, by all accounts, highly successful tenure on the federal district court bench, but this early lapse in judgment may have cost him dearly in terms of his career, for he was both highly capable and, at the time, very young as federal judges go, 39 if memory serves. Surely he could have been expected to go on to bigger things.

In fairness to Judge Byrne, he probably did not realize he had been compromised until fairly late, probably only when the first of those in camera submissions about involvement of Watergate figures in the case arrived in his chambers but perhaps not until the Washington Post story appeared. He could have avoided that by doing the proper thing in the first place. Yet I don't think many federal judges at the time would have refused a summons from the White House to meet with a top White House aide, much less the President, particularly if the invitation was accompanied by an assurance the meeting was unrelated to pending cases, as Judge Byrne said his was. And I doubt many federal judges in those days thought the White House capable of improprieties as blatant as setting up a federal judge in an effort to manipulate his rulings in a pending case. Most federal judges of the day looked askance at leftist lawyers who claimed political considerations were influencing the institution of criminal prosecutions and the way they were tried. Early in the case, Judge Byrne made it clear that he would not countenance any claim that the trial was political. He insisted the case was merely another ordinary criminal prosecution and that it would be tried as that.

The Watergate era, including the Pentagon Papers trial, shattered the blind faith many had in the integrity of the White House, the Justice Department and the federal government in general. A new skepticism about governmental respect for the truth and the law prevailed across much of the land. Courts rejected governmental pleas for a "trust us to do the right thing" approach, and they explicitly said they were doing so. But this healthy state of affairs did not survive the 1970s. One wonders now whether any of the lessons of that time—above all, the lessons of the Viet Nam War—have been remembered.

Best wishes,

Peter YoungLos Angeles, California

2. The Article by Scott Horton

Date: Tuesday, August 23, 2005 1:51 PM

Dear Dean Velvel, I thought you might be interested in my recent article in the NY Law Journal.New York Law Journal, Aug. 16, 2005, p. A2.Washington, Honor and the Treatment of PrisonersBy Scott HortonTwo weeks ago, a trio of powerful conservative Republicans - Senators John Warner, Lindsey Graham and John McCain - drew the ire of the Bush Administration. They put forward legislation to outlaw torture and the cruel, inhuman and degrading treatment of detainees taken in the War on Terror. Their measure instantly drew backing from a legion of retired military officers and veterans. At the same time they joined with a number of other prominent Republicans in calling for a serious investigation of the mounting reports of abuse which were launched some 14 months ago with the first photographs from Abu Ghraib prison in Iraq. The White House’s reaction was swift and unequivocal: if the anti-torture act passed, it would meet with a presidential veto - the first of the Bush administration. After a quick head count showed a likely defeat for the White House, the defense authorizations act was withdrawn from the Senate floor to allow the Administration time to pressure wavering Republicans. In the words of one observer, a battle is now raging "for the soul of the Republican party."[1]

In putting his initiatives forward, John McCain said: "We are Americans. We hold ourselves to humane standards of treatment no matter how terribly evil or awful [our adversaries] may be. To do otherwise undermines our security, and it also undermines our greatness as a nation. We are not simply any other country. We stand for a lot more than that in the world: a moral mission, one of freedom and democracy and human rights at home and abroad."[2] As a POW tortured in the Hanoi Hilton, John McCain speaks to the issue with moral authority.

The issue of officially sanctioned torture and the introduction of a new arsenal of interrogation techniques that embrace cruel, degrading and inhuman treatment has been on the nation’s front-burner for over a year, with remarkably little progress or resolution. The efforts by Senators McCain, Warner and Graham to set clear rules marks an important opportunity for public engagement. As McCain says, the question goes to our national identity. For what values do Americans, as a nation, stand? There is a clear historical answer to this question, for the question of treatment of detainees was fundamental to the Founding Fathers and it played a critical role in defining the nation and the traditions of its armed forces. Much of this history and tradition has been neglected in the current debate.

For George Washington, honor was a vital concept. Today the term may evoke the frivolous image of gentlemen dueling over a personal slight. But for Washington, guided by an education in the classics and a strong admiration for the Stoic philosophers and writers such as Cicero, Seneca and Cato (especially as popularized by Joseph Addison), honor had a profoundly moral and social context. In Washington’s way of thinking, honor was a sacred thread that tied the fundamental values of a society to the conduct of an individual. "Honorable" conduct properly reflected the values of the society; conversely, conduct was "dishonorable" if it was untrue to these values. The concept of honor was especially important in war - an aspect of the human condition which, in Washington’s view, provided a real crucible in which to test the moral character of a man.

From the outset of the Revolutionary War, Washington faced a dilemma: his British adversaries declined to accept the Continental Army as a regular military adversary and General Washington as its commander. Instead, they viewed the revolutionary Americans as disloyal or treasonous insurrectionists not entitled to the rights of honorable combatants (a position essentially identical to that recently articulated by the Pentagon with respect to insurgents in Iraq). American soldiers who fell into British hands were dealt with severely; many faced brutal punishments and were detained under inhumane conditions. In September 1775, Americans learned with horror that all 31 prisoners taken by the British at the battle of Bunker Hill had died in captivity. Of the 2,607 Americans taken prisoner at the capitulation of Fort Washington in September 1776, all but 800 had died inexplicably by 1778 - most of the deaths occurring aboard the infamous prison hulks the British maintained in New York harbor. But American public opinion was particularly rattled by reports that in February 1777, seven American soldiers who surrendered following a skirmish at Drake’s Farm (in present day Metuchen, New Jersey) had been brutally murdered, their brains crushed with musket butts. The British commander denied any wrongdoing. Public opinion, and voices in the Continental Congress, demanded retribution for these acts. [3]

Washington saw things differently. For him it was imperative that America not descend to the level of the British. Rather, prisoners taken in combat should be treated in the manner that the ideals of the nascent American republic required: "Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands."[4] The general rule, fixed by Washington and retained as doctrine by the US military until the commencement of the present conflict, was that those taken prisoner would be given housing, food and medical attention in no respect inferior to that afforded American soldiers. Also, he insisted on firm respect for the religious convictions of those detained. "While we are contending for our own liberty, we should be very cautious of violating the rights of conscience in others, ever considering that God alone is the judge of the hearts of men, and to Him only in this case are they answerable."[5]

Washington’s writings show that, while dictated by "honor," these policies had four specific underpinnings: (1) To bear witness to the ideals of the American Revolution; (2) To win over the "hearts and minds" of the adversary; (3) To avoid the vicious circle of retribution, which would most likely serve to make the war more brutal and inhumane for Royalist and Revolutionary alike - to shame the British into more civilized conduct by affording a superior moral example; and

(4) To maintain good order, discipline and morale in the Continental Army itself. In all of these points, Washington reveals himself a practical general capable of wielding the ideology of the American Revolution to his tactical advantage. At the Battle of Trenton, a group of elite German mercenary units fell captive to the Americans. Washington wrote, "If proper pains are taken to convince them how preferable the situation of their countrymen, the inhabitants of those counties, is to theirs, I think they may be sent back in the spring, so fraught with a love of liberty, and property too, that they may create a disgust to the service among the remainder of the foreign troops and widen that breach which is already opened between them and the British." [6] Most of the Hessians were quartered in the then largely German-speaking area around Reading, Pennsylvania. Subsequent studies have shown that Washington’s objective was accomplished.[7] These Hessians came to see the advantage of settling and becoming American citizens, which they did, nearly to the man. Indeed, a number subsequently enlisted as soldiers in the Continental Army. The advantages of citizenship in a democratic state compared with highly repressive service under a German feudal despot (be it the Landgrave of Hesse or the Hanoverian king in England) were plain enough. Moreover, as the war reached its end, the British forces were plagued by desertion on a significant scale. This certainly would not have occurred but for the foresight of Washington’s policy on the humane treatment of prisoners.From his experience commanding troops in the French and Indian War, Washington saw that soldiers who mistreat captives generally also exhibit disrespect for command authority and military discipline, and are, therefore, highly undesirable soldiers. For this reason, the rule of humane treatment was also essential to military discipline and morale. Consequently, Washington favored swift, harsh punishment to soldiers who mistreated those under our power. "Should any American soldier be so base and infamous as to injure any [of them]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause."[8] Washington promised similar severity to officers who failed to heed these rules, warning that in so doing they would bring "shame, disgrace and ruin to themselves and their country." The war, said Washington, depended on a "conciliation of the affections" of the adversary "to the great interests of America." [9]

For Washington, the moral high ground was America’s decisive tactical advantage. In a war against the world’s greatest military power, in which citizen soldiers faced seasoned professionals, it brought victory when defeat seemed a foregone conclusion. As David Hackett Fischer writes in his Pulitzer Prize-winning account, Washington’s Crossing: "In a desperate struggle they found a way to defeat a formidable enemy, not merely once at Trenton, but many times in twelve weeks of continued combat. They reversed the momentum of the war. They improvised a new way of war that grew into an American tradition. And they chose a policy of humanity that aligned the conduct of the war with the values of the Revolution." [10]

Washington’s policies concerning the treatment of detainees, fixed for the first time at the Battle of Trenton - that Christmas miracle of 1776 which brought hope in that darkest phase of the war - constituted the military doctrine of the United States for 226 years. It is entirely appropriate, at this juncture, to focus attention on how those policies came to be overturned in 2002-03. Certainly, one can have differing views on the efficacy and morality of certain intelligence-gathering techniques. However, it is clear beyond any doubt that in Senators McCain, Graham and Warner, the ideas of the Founding Fathers have again found a voice on Capitol Hill.

About Dean Velvel

Name:Lawrence
Velvel

Location:Andover, Massachusetts,
United States

Dean Velvel, an honors graduate of
the University of Michigan Law School, has practiced law in the public and private sectors,
and been a law professor. He is the author of the quartet Thine Alabaster Cities
Gleam. The books in the quartet are entitled: Misfits In America, Trail of
Tears, The Hopes and Fears of Future Years: Loss and Creation, and The Hopes
and Fears of Future Years: Defeat and Victory.

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